TaxTMI 
TaxTMI 
2010 (2) TMI 311
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....r no. 1, have challenged the notice dated lst/4th December, 2006 (for short "the notice") issued by the Assistant Commissioner (S.I.V.) Service Tax, Kolkata, respondent No. 2, requesting the petitioner No. 1 to furnish certain documents mentioned therein with regard to the information regarding taxability of its activity under the category of Business Auxiliary Service (for short 'BAS') under the Finance Act, 1994. It may be noted that provisions for Service tax have been made in sections 64 to 96-I (Chapters V and VA) of the Finance Act, 1994. In the writ petition it has been stated that the petitioner No. 1, registered under the Service Tax with regard to eight activities, have been regularly filing service tax returns and paying ....
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....for the respondents justifying the action has submitted that Section 83 of the Finance Act, 1994 read with Section 14 of the Central Excise Act, 1944 (for short the "Central Excise Act") authorise the respondent to issue such notice. Since Finance Act, 1994 is a special Act and the Section 14 of the Central Excise Act do not contain the words 'reason to believe', the judgements relied on by the petitioner are not applicable to the facts of the case. Moreover, the instant writ petition is not maintainable since it is evident from the reply dated 20th December, 2006 that the petitioner No. 1 had submitted to the jurisdiction of the authority as it had understood the purport of the notice and request was made to grant time for complian....
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....the present group, and mode of reimbursements/payments of any kind received by you. 2. Monthwise figures of all considerations (cash or kind) received by you for the services provided. 3. Balance sheet and audited books of accounts of your concern and your present group. 4. Copy of Service tax registration certificate and returns submitted. 5. Copy of IT returns. 6. List of your agents, distributors in Kolkata and payments made on them. Sd/- Assistant Commissioner (SIV) Service Tax, Kolkata" (Emphasis supplied) 5. In order to appreciate the issue it is necessary to refer to Section 83 of the Finance Act, 1994 and Section 14 of the Central Excise Act. Section 83 of the Finance Act, 1994 is as under:- "SECTION....
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.... Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure (5 of 1908) shall be applicable to requisitions for attendance under this section. (3) Every such inquiry as aforesaid shall be deemed to be a "judicial proceeding" within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860)." (Emphasis supplied) 6. It is evident that admittedly the petitioner is carrying on commercial activity of printing, publishing and selling of newspapers and periodicals and selling of advertisement space in the print media. The authorities had issued the notice dated lst/4th December, 2006 requesting the petitioner No. 1 to furnish documents as mentioned therein as an "inquiry" had been initi....
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....tself regarding the correct state of affairs before a conclusion is drawn. As documents sought for are identifiable, it cannot be termed to be a fishing or an omnibus inquiry. Rather it has to be kept in mind that the authorities are conducting the inquiry - a statutory duty - as to whether the petitioner comes under purview of the BAS, which has been termed in the notice as reason to suspect. Suspicion is the ground for making an inquiry. As there is suspicion, the petitioner No. 1 has been requested to furnish documents. Since it is a statutory notice, the petitioners are bound to comply as unless documents are produced it cannot be decided whether the petitioner No. 1 falls within the ambit of BAS. This is the pre show-cause notice stage....